I have presided over more than a few judge-alone cases where I have asked more questions than the trial counsel, including asking witnesses about elements that were not covered by the Government.

At page 39 (emphasis added).

This reads as if the military judge intrudes himself to ask questions intended to elicit facts and testimony to support a finding on one or elements. In other words the “second” trial counsel role. To paraphrase:

[I] note at the outset that this [reads as if this] military judge [might be] more aggressive in his use of “clarifying questions” than many judges would dare. . . .In the military, a judge may not abandon his role as an impartial party and assist in the conviction of a specific accused.”

United States v. Reynolds, 24 MJ 261, 264 (C.M.A. 1987).

A military judge has a difficult balancing act which in Ramos, the court called the judges’ tight-rope and the maintaining of the “full fulcrum.”

This Court has commented on the tightrope over which a judge must tread in assuring, on the one hand, that court-martial members are provided the information that they need, while, on the other, “scrupulously avoiding even the slightest appearance of partiality.” United States v. Shackelford, 2 M.J. 17, 19 (CMA 1976); see United States v. Dock, 40 M.J. 112 (CMA 1994); United States v. Clower, 23 U.S.C.M.A. 15, 48 C.M.R. 307 (1974).

United States v. Ramos, 42 M.J. 392, 396 (C.A.A.F. 1995). And:

There is a strong presumption that a military judge is impartial in the conduct of judicial proceedings. “When a military judge’s impartiality is challenged on appeal, the test is whether, taken as a whole in the context of [the] trial, [the] court-martial’s legality, fairness, and impartiality were put into doubt by the military judge’s actions.” We apply this test from the viewpoint of the reasonable person observing the proceedings. Failure to object at trial to alleged partisan action on the part of a military judge may present an inference that the defense believed that the military judge remained impartial.

United States v. Foster, 64 M.J. 331, 333 (C.A.A.F. 2007).

Here is a potential teaching point for defense counsel. We all know judges who are perceived to put their thumb on the scales and help out trial counsel (and trial counsel have similar perceptions about other judges helping the defense). Let’s take a look at some other cases. And defense counsel should remember it is OK to object if done in a professional and tactful manner. I have found a need to do that several times. If the defense doesn’t object it’s going to be a waiver/plain error/IAC issue potentially.

[M]military practice and procedure expressly provide for questioning of witnesses by a military judge (see Mil. R. Evid. 614(b), Manual, supra), and our case law requires that it be done in a fair and impartial manner. . . . the mere fact that the answers to these questions may help or hurt one party’s case does not suggest partiality, especially where the military judge makes clear his neutral purpose in asking these questions.

United States v. Cooper, 51 M.J. 247, 250 (C.A.A.F. 1999), but see, United States v. Smith, 52 M.J. 337, 342 (C.A.A.F. 2000)(military judge should not be trying the prosecution’s case).

Mil. R. Evid. 614(b) is apparently broad:

Interrogation by the court-martial. The military judge or members may interrogate witnesses, whether called by the military judge, the members, or a party.

As to the military judge in the Cooper case, the Air Force Court of Criminal Appeals had noted:

There was no objection, on the record, to any of the judge’s comments–therefore, once again, we must approach this issue with a “plain error” analysis. We note at the outset that this military judge was more aggressive in his use of “clarifying questions” than many judges would dare. However, in the absence of objection on the record, it is very difficult to find plain error.

51 M.J. at 249.

Several reasons exist for our conclusion that this is not an extraordinary case requiring reversal of appellant’s conviction. First, defense counsel lodged no objection to the military judge’s curative instructions on the grounds that the judge’s comments further evidenced his bias for the Government. See RCM 801(g) (effect of failure to raise defenses or objections). Moreover, he made no motion to disqualify the military judge from continuing to sit in this case on the basis of these judicial remarks. Third, the judge’s reprimand, although probably unjustified and certainly improper before the members, was no more than a mild rebuke of defense counsel (“having halfway chewed him out”). Finally, the now-challenged comments were couched within unequivocal instructions from the judge protecting appellant from any impermissible use of his comments.

51 M.J. at 250.

Questioning the Witnesses. A military judge must scrupulously avoid “even the slightest appearance of partiality.” A military judge’s “influence . . . is necessarily and properly of great weight,” and his “last word is apt to be the decisive word.” On the other hand, because military judges are more than “mere referees,” it is appropriate for them to take an active part in the trial. Thus, while military judges may not become partisan advocates, they may and “sometimes must ask questions . . . to clear up uncertainties in the evidence or to develop the facts further.”

51 M.J. at 253 (Gierke, J., concurring inpart and in the result).

It seems to me from the cases (mainly members cases) that there are several common threads: a military judge does not err when asking questions to “clarify factual uncertainties,”or “clarify ambiguity,” and a military judge does not err if also seen to be acting in a objectively “fair and impartial manner,” and the defense better object. See, Cooper, supra; Ramos, supra, United States v. McIlwain, 66 M.J. 312, 314 (C.A.A.F. 2008) (whether military judge should have recused self is viewed objectively looking at the totality of the circumstances). However, a military judge may err if asking questions to solicit facts to support the elements of the offense. On the one hand the military judge is a facilitator on the other a trial counsel.

We regularly tell members that it is not their job to aid one side or the other, that there are not there to fill in holes in the case. To a large degree there is a level of tolerance from both sides especially with new counsel. However, the fact that counsel are new and inexperienced is not a reason for the military judge to become an additional counsel. Military judges acting as fact-finders ought to subject themselves to a similar admonishment as we give members.

Since the start of the war in Iraq in 2003, there have been at least a dozen slayings on Western Washington soil alone involving active troops or veterans of Iraq. The body count includes seven wives, a girlfriend, and one child; six other children have lost one or both parents to death or imprisonment. Most gruesome was the double slaying by an attractive Fort Lewis soldier, Spc. Ivette Davila, 22, who shot, killed and then poured acid on the faces of Timothy Miller, 27, and Randi Miller, 25, a military couple stationed at the fort, then kidnapped their child.

Army Times reports:

Surprise U.S. Senate nominee Alvin Greene frequently mentions his 13 years of military service, but records obtained Thursday by The Associated Press show that the veteran who has called himself an “American hero” was considered a lackluster service member at best.

The Post & Courier has this report:

Alvin Greene dismissed highly critical assessments of his military service today, calling his supervisors in the Air Force and Army “ridiculous.” Greene, who The Post and Courier reached by phone at his Manning home, said he was passed over for promotions in the military and ultimately discharged involuntarily, but honorably, due to discrimination. “Those folks are ridiculous and yes and they only promote the terrorists and the communists and I haven’t gotten a promotion since I graduated from college and that’s just what I’m saying,” Greene said. “This is why we need to have things done differently. This is why we need to overhaul the military. We need get rid of these folks.” And here is a link to the records themselves.

Navy Times reports:

A Minnesota naval officer and his Samoan wife and sister-in-law have been accused of extorting $185,000 from family members by telling them they would be killed by the Samoan mafia if they didn’t pay his debts.

AP reports:

A 21-year-old soldier was indicted Thursday on charges he fatally shot his wife and infant daughter in their Anchorage apartment soon after he returned from Afghanistan. Attempts to determine who is representing Lynch were unsuccessful Thursday. Army spokesman Chuck Canterbury at Fort Richardson said Lynch has two attorneys — one a private lawyer, the other provided by the military — but he didn’t know their names.

Gannet News While he still vacillates between regret and indignity over what happened in Iraq, he has given up thoughts of going back to retrieve a separate bundle of money that he says he found and buried in the sands — and Army investigators never discovered.

Army Times reports:

Less than two years ago, Earl Coffey stood on the shore of the Gulf of Mexico, a broken man, holding his Army uniform, photos and military medals in his hands. The son of Kentucky coal miners, Coffey had watched his life unravel after his theft of a dictator’s desert treasure became an almost biblical curse — running through his hands like sand, landing him in prison and sending him on a downward spiral of homelessness, divorce and drug addiction. With nothing left, Coffey tossed the remnants of his 13-year Army career into the surf — and began a long walk home to the Appalachian mountains of Harlan County, Ky. . . Coffey, 36, has since rebuilt a quiet life among the coal mines that he escaped by joining the Army — only to become one of seven U.S. soldiers convicted in 2003 of “looting and pillaging” for his part in stealing the $586,000 in cash he found in one of Saddam Hussein’s bombed-out Iraqi palaces.

Somewhat similar to its federal counterpart, Indiana Rule of Evidence 410 provides in relevant part that Evidence of a plea of guilty or admission of the charge which was later withdrawn, or a plea of nolo contendere, or of an offer so to plead to the crime charged or any other crime, or of statements made in connection with any of the foregoing withdrawn pleas or offers, is not admissible in any civil or criminal action, case or proceeding against the person who made the plea or offer. So, is a letter of apology written by the defendant to the victim inadmissible under this Rule? According to the recent opinion of the Supreme Court of Indiana in Gonzalez v. State, 2010 WL 1988134 (Ind. 2010), the answer is “yes” if the letter was written as part of the plea bargaining process.

Both the Montgomery and Post 9/11 GI Bills are worth over $49,000. This money is not a loan and will help you cover the costs of getting a degree. Full-time students receive up to $1,368 a month no matter how much tuition costs. The Post 9/11 GI Bill may even give you a monthly housing stipend of $1,200.

On direct appeal the NMCCA set aside the original findings of guilty to negligent homicide and the sentence.

A rehearing on sentence was authorized for the remaining guilty finding of false official statement.

The CA found a rehearing was impractical and approved a punishment of “no punishment.”

On habeas review of state court convictions, the detective’s trial testimony about the statements of two non-testifying co-actors which implicated the defendant in the shooting and which were used to confront the defendant during his interview violated the Confrontation Clause and constituted plain error, in Ray v. Boatwright, _ F.3d _ (No. 08-2825). Since Crawford v. Washington, 541 U.S. 36 (2004), testimonial statements are inadmissible under the Confrontation Clause unless the declarant testifies subject to cross examination. There are not many cases in which a Confrontation Clause challenge raised for the first time on appeal may result in plain error. The Seventh Circuit recently identified one case which did.

Moral: when you go AWOL you can’t keep running if you run out of gas. As I drive I-95 I often see military convoys. It had not occurred to me that one or more of the drivers was in the process of going AWOL.

An Army private is in custody in Daytona Beach for being absent without leave from Fort Stewart in Georgia. Sean Aaron Johnson was discovered Tuesday after the military Humvee he was driving ran out of gas on the side of Interstate 95.

Army Times reports.

Larson added that, although Johnson is in the Army Reserves, because he was not on active duty at the time of the incident – which began on federal property – the FBI has been charged with heading up the investigation.

Savannahnow reports. (photo credit to savannahnow.com)

A panel of U.S. military judges has heard the first direct appeal of a convicted detainee at Guantanamo Bay.

VOA News reports.

Lance Cpl. Sean Bradley was feeling hard up for cash. He and another Camp Pendleton Marine tossed around moneymaking ideas. In the end, they chose a loser. Bradley, 24, pleaded guilty yesterday to stealing truckloads of spent ammunition casings from the base firing range where he worked and selling them as scrap metal, raking in nearly $31,000.

San Diego.com reports.

The commander of the Charleston Naval Weapons Station has been reassigned after he was arrested on a charge of soliciting a prostitute.

Navy Times reports.

FederalEvidenceReview has some interesting questions about the GVR in Briscoe.

The Army’s attempt to stem a rising tide of suicides made it impossible for a Fort Bliss soldier convicted of cruelty toward subordinates to get a fair trial, the soldier’s parents say. “I still maintain that this was a miscarriage of justice,” said John Taylor, father of Pvt. Jarrett Taylor. “They needed a conviction and they got it. É This is a sham.” Taylor said his son, a sergeant at the time, was trying to help soldiers on their first deployment in Iraq survive in a combat zone.

elpasotimes.com reports on this concluded court-martial for violations of Article 93, and 107, UCMJ. This is not the only court-martial to have arisen from this case.

Charges against Daniel Weber, 24, of Frankenmuth, Mich., were dropped with the understanding that he would testify against the others. He is no longer in the Army.

Sgt. Enoch Chatman, 30, of West Covina, Calif., and Staff Sgt. Bob Clements, 29, of Eastland, Texas, face more serious charges and are scheduled for courts-martial early next year, Caggins said.

FrumForum interviewed retired Major Merideth A. Bucher, author of the much cited paper, The Impact of Pregnancy on U.S. Army Readiness. Bucher explains that a woman who becomes pregnant ceases to be available for combat service. She will be returned home; her unit is left missing a body, a soldier. She passionately told of her own experience: Two days before Desert Storm was to begin the female intelligence officer in the Major’s battalion became aware she was pregnant. Because she could not deploy and was sent home the battalion was left vulnerable by having to fight without an intelligence officer present. By losing one person everyone else has to work that much harder to get the mission accomplished. And when a woman soldier in particular gets pregnant, Bucher argues, “it weakens every female soldier standing as a member of that unit. If one woman does that it taints the water for everybody.”

Here is the link to Bucher’s paper, written when she was a major at the Air Command & Staff College, Air University.

The recent order about pregnancy while assigned to the AOR is in the process of being revoked, and the overall regulation (GO#1) under major revision. There will not be a court-martial for getting pregnant or getting a woman pregnant. My recollection is that the Navy went through turmoil when women were first assigned to combatant ships in mixed gender crews. At the time there was in place a fairly rigid sexual fraternization order, prohibiting sexual relations amongst crew members, even if the couple was married.

The House Armed Services Committee on Wednesday suspended its investigation of the Nov. 5 shootings at Fort Hood, Texas, until the Department of Defense had finished its investigation. DoD requested that Congress wait until its review had been complete before calling DoD witnesses to testify in public hearings, according to a release from committee chairman Rep. Ike Skelton, D-Mo.

Marine Corps Times reports. I’ve commented early on about the potential discovery opportunity presented Major Hasan and his defense counsel, or at least the potential for litigation, if Congress (and DoD) persist in conducting public hearings, getting witnesses on record under oath, etc.

FBI agents who discovered Maj. Nidal Malik Hasan’s extremist ties before the Fort Hood massacre may not have had access to key Army records on the psychiatrist, U.S. Sen. Susan Collins said Tuesday.

Military.com reports. Welcome to the club Senator. Frequently the defense and trial counsel in specific cases don’t have access to complete or accurate military personnel records.

Major Hasan has been moved out of ICU. KWTX reports, as does ABC News.

Advocacy groups continue to call for an additional charge based on the death of a fetus.

In light of reports that Pvt. Francheska Velez was pregnant when she was shot and killed by Major Nidal Malik Hasan at Fort Hood Military Base, State Representative Phil King (R-Weatherford) has joined with 30 of his conservative colleagues in the Texas Legislature in calling for the United States Army to charge Hasan for taking the life of an unborn child, in addition to the existing thirteen charges of premeditated murder.

Reports Weatherford Democrat.

Charges to be dismissed in Major Hasan’s case. Wrong person accused.

In the case of Maj. Nidal Malik Hasan and the Fort Hood massacre, the verdict has come in. The liberal news media have been found guilty — by the conservative news media — of coddling Major Hasan’s religion, Islam.

So reports the New York Times

Homeland Security committee begins collecting discovery for the Major Hasan defense team.

It’s not clear yet, but it looks like the Army and Department of Defense might also be about to do the same. One of the major issues that counsel have to pursue in death penalty cases at court-martial is the persons background. Besides the potential insanity issue on the merits, it is critical to develop as much of a personal history and background as possible. That means the defense will be requesting, and if they are smart, the government providing the expert assistance of a mitigation expert. The committee and potential Army actions will be of potential assistance to the defense. True, the investigations could develop something negative, but in this case that’s not something the defense needs to worry about at this stage. The defense needs information, the prosecution will try to stop or delay them getting it, so outside help is welcome.

Stars & Stripes reports: Fort Hood slayings prompt full Pentagon review

Washington Post reports:

Gen. George W. Casey Jr., the Army’s chief of staff, is forming a panel to look closely at the military career of Maj. Nidal M. Hasan, the man accused in the Fort Hood shootings, and probe whether warning signs were missed, a senior Army official said Monday.